Why Immigration Won’t be Discharged (Wonky)

Immigration reform is the issue that keeps finding its way into the news. After the Senate’s heroic efforts to find common ground on the bill, it’s seemingly inevitable demise in the House has many worried. In an effort to kickstart the stalled bill, there has been some mild blog fervor for a seldom-used legislative procedure: the discharge petition. Progressive activists have dusted off the House Rules to find a new path forward. Molly Jackman at Brookings has a great post on discharge history, the theory behind it, and why its feasible. For history buffs out there, I high recommend it. However, I’m more in Jon Bernstein’s camp: “it’s a PR gambit.” While it is possible for the discharge process to force a vote on immigration, it’s not viable for several reasons.

But before I get into why it won’t work, let me rehash why it could, at least in theory. The discharge petition was created to circumvent procedural roadblocks. By signing a petition, members could “discharge” a committee from a bill referred to it. Once the petition received a minimum amount of signatures (it’s changed over the years but today it requires 218 – a clean majority), a motion could be made on the floor and the House would consider the bill.

The discharge is intriguing because of the House majority. House Republicans are a divided group. There are clearly some in the majority that would like to pass immigration reform, and there are many more that would likely not. However, most analysts reasonably believe there are enough to discharge the bill from committee, therefore forcing a vote and passing landmark immigration reform. And given the majority’s current disarray it seems like a legitimate tactic. The leadership has had their fair share of hard times recently. The failed FARRM bill, several violations of the “Hastert rule” in order to pass crucial legislation, and a disasterous final legislative week before recess are just a few of the low-lights from the first session of Congress. Given the disorder the discharge process seems possible, even down-right reasonable.

But here is why it won’t work. First, party pressure to not sign a discharge petition is immense. Remember, discharge is used in order to circumvent House leaders. You have to assume there is a reason they are not bringing immigration to the floor. So by going around their authority with the discharge process, you are going to make them very upset.

Therefore, signing a petition comes with some inherent risks. It became even riskier in 1993 when the petition process was made public. Since then signers no longer have had the comfort of anonymity. Thomas Mann and Norm Ornstein argued in 1993 that the public discharge petition effectively marked the death of rank-and-file protection from the leadership.  Opposition to the leadership’s position is now public. And with that come significant political risks. As a majority member signing onto a minority petition: risks killing legislation you may have waiting for consideration or floor time, risks losing any amendments you may have to offer on an appropriations or bill considered under a structured rule, not to mention fundraising and electoral risks. And lastly, particularly if you are a Republican, you risk your seat on committee and your opportunity for future committee leadership on a sub- or full-committee. Earlier this year Boehner and the leadership punished four members by removing them from their committee assignments. The basic leadership message goes something like this: “Do you like your job? That’s nice. If you want to keep it you’ll take your name off that petition.”

Second, even if enough signatures are gathered the leadership can still grab the upper hand. After the petition receives a majority of signatures, it has a 7-day wait period. Once the wait period has passed, members can only make a motion on the floor on the second and fourth Monday’s of the month. So far this Congress, there have been exactly two legislative days that fell on those days (there will be three more before the year is over). In the meantime, the leadership can either reschedule legislative days or call the Rules Committee to consider an identical bill but under a special rule, thereby regaining agenda power and making the petition moot.

In short, discharge could force a vote on immigration. But, it won’t achieve what many floating the discharge petition really want: an up-or-down vote on the Senate immigration bill. Boehner has every incentive to regain agenda control by issuing a special rule. So even if immigration is discharged, it will be considered under Boehner’s terms. That means, the amendments that many immigration activists would like to see would not be in order, and the amendments they would not like to see would be.

It is possible a discharge petition forces a vote on immigration, just not likely. And even with a successful discharge process, immigration supporters would not like the terms of debate. Therefore, we find ourselves in a very similar position. The gulf between the House and Senate immigration bills  would still be large. Again, the question is: can the House and Senate get along? I’m not betting on it.